Manuel Ramirez, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Ramirez is in the custody of the New York State Department of Corrections and Community Supervision and is incarcerated at the Wende Correctional Facility. Respondent has answered, and Ramirez has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

On August 23, 2009, Ramirez, an illegal immigrant from Guatemala, attacked a woman who was walking along a road, used physical force to restrain her, and caused her physical injury by inserting a flashlight into her vagina. Ramirez was charged by Superior Court Information with one count of first-degree aggravated sexual abuse.

At Ramirez's plea hearing, defense counsel represented that Ramirez had signed a 10-page waiver of indictment and guilty plea after she had discussed the plea with him through an interpreter and the plea/waiver form had been translated into Spanish. The court required Ramirez to re-execute the form in open court after swearing him in. Ramirez, through an interpreter, confirmed that he initialed and signed the document in open court and that he swore to the truth of it. In the plea/waiver of indictment form, Ramirez acknowledged that he had discussed the proceedings and form with his counsel and that he was satisfied with her representation, he was not under the influence of drugs or alcohol and did not have any physical or emotional disabilities that prevented him from understanding the proceedings or his counsel's advice, and no one had threatened or forced him to execute the form or promised him anything. Ramirez further acknowledged that he was waiving his right to remain silent, his right to a trial and its attendant rights, and that he could face up to 25 years' imprisonment. Ramirez also indicated that he was not a United States citizen, and initialed the following section regarding the immigration consequences of his plea:

17. I understand that, if I am not a citizen of the United States of America, a conviction may result in my deportation, exclusion from admission to the United States or denial of naturalization and that, if my plea includes a felony other than a violent felony offense or an A-I felony offense other than one defined in Article 220 of the penal law, and I become the subject of a final order of deportation issued by the United States Immigration and Naturalization Service, I may be paroled to the custody of INS for deportation purposes at any time subsequent to the commencement of any indeterminate prison sentence imposed as a result of my plea.

Ramirez acknowledged that he was pleading guilty, and initialed the following allocution:

On or about August 23, 2009 I was in the Town of Stuyvesant on Eichybush Road.... On that time date and place I did attack a woman who was walking on the road and used physical force to restrain her. When I physically restrained this woman I did insert a flashlight into her vagina. While I physically restrained her and inserted a flashlight into her vagina I did cause physical injury to this woman. I did all of these acts without the consent of this woman and against her will.

The parties also submitted a stipulation in which defense counsel stated that she had "discussed with [Ramirez] the facts of [his] case as well as the meaning of the waiver, " and that she was "satisfied that he understands the waiver and its consequences." In that stipulation, the prosecutor stated that she consented to the waiver.

The court then elicited from Ramirez, again through the interpreter, that he was 31 years old, could read and write in Spanish, was sober, was not under the influence of any drugs, and did not have any physical, mental or emotional disabilities. Ramirez confirmed that no one had made any promises or threats to induce him into pleading guilty, and that he had made "all of [his] decisions with respect to this prosecution freely and voluntarily." Ramirez claimed to be satisfied with his attorney's representation and did not have any questions for counsel or the court. Ramirez stated that he understood that he had a right to a trial and a right to be prosecuted by indictment, and that he could receive a sentence of up 25 years' imprisonment and 20 years of post-release supervision. Ramirez then stated that he wished to be prosecuted by information rather than indictment, and that he additionally wished to give up his right to remain silent and his right to a trial. When questioned by the court, Ramirez indicated that he was not a United States citizen. Ramirez answered in the affirmative when the court then inquired whether he was aware that his guilty plea meant that he "may be deported on this conviction at any time." Ramirez also answered in the affirmative when asked if he understood "all the consequences of the decisions" he had made that day. Then court then specifically asked Ramirez if he wanted the court to accept his waiver of indictment, his waiver of his right to remain silent, his waiver of his right to a trial, and his guilty plea. Ramirez answered in the affirmative, entered a guilty plea, and then gave an allocution in which he admitted to using force to insert a flashlight into the victim's vagina without her consent, thereby causing physical impairment and substantial pain. The court then accepted Ramirez's guilty plea.

Ramirez's pre-sentence investigation report ("PSR") indicates that he told his probation officer that he could not recall what happened on the evening of the incident. According to his PSR, he "had been drinking beer and... was not sure how many beers he had. He... was with a [woman] and they both fell and... he doesn't remember anything after that." In a section titled "Criminal Attitude, " Ramirez's probation officer concluded:

[Ramirez] has the presence of cognitions that serve to justify, support, or provide rationalizations for his criminal behavior. These cognitions include moral justification, refusal to accept responsibility, blaming the victim, and excuse making that minimizes the seriousness and consequences of his criminal activity.

At Ramirez's sentencing hearing, the prosecution argued that, according to the PSR, Ramirez failed to take responsibility for his actions, and, coupled with the harm caused to the victim, her family, and the community, he should receive the maximum sentence.

In response, defense counsel argued that Ramirez's statement during his pre-sentence investigation report, in which he claimed not to remember the incident, was the result of a misunderstanding. According to defense counsel, the probation officer visited Ramirez while he was in jail to conduct the pre-sentence investigation interview. The probation officer was not aware ahead of time that Ramirez did not speak English, and instead of rescheduling the interview so that an official interpreter could accompany him, he requested that a fellow inmate translate for Ramirez. Ramirez allegedly did not want to disclose the nature of his crime in front of that inmate out of fear that it would become common knowledge of the general prison population. He accordingly lied out of fear that the inmate who was translating would expose him. Defense counsel informed the court that he had asked the probation officer who conducted the interview to attend the sentencing hearing in case the court wanted to question him about the circumstances of the pre-sentence investigation interview, but it is not clear from the record if the officer did in fact attend.

The court asked defense counsel if he would like to postpone sentencing in order to supplement the PSR, but counsel declined, stating "I'd like to offer just an explanation, and proceed as it is, if I may." Defense counsel explained that Ramirez's statement to his probation officer stood in "sharp contrast with what else has happened in the case since his arrest." Specifically, Ramirez "immediately confessed" to police, admitted to the crime at his plea hearing, and intended to make a statement during the sentencing hearing accepting responsibility and expressing remorse. Ramirez did in fact address the court and the victim shortly thereafter and apologized for his actions. The court sentenced Ramirez to 23 years' imprisonment, 20 years of post-release supervision, and surcharges totaling $1, 425. The court also entered an order of protection against Ramirez, which it set to expire 5 years after the completion of his post-release supervision. In orally pronouncing Ramirez's sentence, the court did not factor in whether Ramirez had taken responsibility for his actions and expressed remorse.

Through counsel, Ramirez directly appealed, arguing that: 1) the probation officer's impromptu use of a fellow inmate to translate the pre-sentence investigation interview invalidated a "major portion" of the PSR in violation of New York Criminal Procedure Law ("CPL") § 390.20; 2) the trial court should have conducted "a more detailed colloquy of the rights which were being waived" because Ramirez lacked experience with the court system, did not speak or read English, and the offense and the consequences of his plea were "serious"; 3) defense counsel failed to affirmatively state on the record that she advised Ramirez of the adverse immigration consequences of his guilty plea in violation of Padilla v. Kentucky, 559 U.S. 356 (2010); and 4) Ramirez's sentence was unduly excessive and harsh.

The Appellate Division affirmed Ramirez's judgment of conviction, first concluding that he failed to preserve for review his contention that his plea was not knowingly, voluntarily, and intelligently entered because he failed to move to withdraw his plea or to vacate the judgment of conviction. People v. Ramirez, 934 N.Y.S.2d 728, 728 (N.Y.App.Div. 2011). The court further concluded that, contrary to Ramirez's contention, the record established that he was properly advised of the immigration consequences of his plea in compliance with Padilla, 559 U.S. 356. Id. Finally, the court dismissed Ramirez's challenge to the accuracy of the PSR because ...

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